BART strikes are awful, but a ban would be worse

John Logan

August 5, 2013

Photo: Justin Sullivan, Getty Images

OAKLAND, CA - AUGUST 02: A sign is posted outside of the Bay Area Rapid Transit (BART) Rockridge station on August 2, 2013 in Oakland, California. San Francisco Bay Area commuters are bracing for the possibility of a BART strike as a 30-day contract extension is set to expire on August 4 at midnight. Unions representing BART workers announced a 72-hour notice of intent to strike yesterday as BART management and union officials continue to negotiate a new contract. An estimated 400,000 people ride BART each day. (Photo by Justin Sullivan/Getty Images)

OAKLAND, CA - AUGUST 02: A sign is posted outside of the Bay Area...

Another disruptive BART strike has been avoided - at least for now. The uncertainty has prompted some commentators to propose revising state law to prohibit strikes by BART employees. Other laws, they point out, already forbid transit workers from striking in New York, Washington, D.C., and even in San Francisco. Such a simple solution - outlaw strikes by BART workers and, presto, no more BART strikes. But would such a prohibition really have prevented the chaos of the past few weeks? New York's experience with banning strikes suggests that it would not.

In December 2005, New York state's Metropolitan Transit Authority was involved in contentious negotiations with its primary union, the Transport Workers Union Local 100. Under New York's Taylor Law, transit workers are forbidden from striking. But this prohibition did not prevent a strike. The union insisted that the MTA had from the start refused to negotiate in good faith and had proposed an illegal two-tier pension system. Workers voted to strike and walked off the job for 60 hours. By the third day, the parties had negotiated an agreement, minus the contentious pension proposal.

The law failed to prevent a disruptive strike, but the fallout did not end there. For staging an illegal strike, the union faced draconian penalties. Then-New York Attorney General Eliot Spitzer got a court order imposing a fine of $1 million for every day of the strike, the union president was jailed for 10 days and its dues checkoff (payroll deduction for union members to pay union dues) was suspended indefinitely.

In response, the transport union filed a complaint with the International Labor Organization. Finding the Taylor Law incompatible with international law, the organization attacked both the excessive financial penalties, which had undermined the ability of the union to represent its members, and the imprisonment of its president. It called for state officials to compensate the union and its president and revise the law's no-strike provision.

As the New York experience makes abundantly clear, laws prohibiting transit strikes do not improve labor-management relations, and they don't even guarantee the absence of strikes. If illegal strikes do take place, they are often highly contentious, and their poisonous legacy inflicts lasting harm.

Unlike police officers and firefighters, transit workers are not part of "essential services," the legal definition of the kind of workers who may be banned from striking, and there is no justifiable reason for a blanket ban on their right to strike. Under existing California law, the governor has several options: He can seek from a judge a 60-day "cooling off" injunction, which the unions requested before the first strike, and management requested last weekend - both unsuccessfully. Or he can impose a contract extension for a shorter period, as he did after the first strike, and form a fact-finding board to investigate the dispute, as he did on Sunday.

State law allows such interventions by the governor if a strike would disrupt public transportation and endanger public safety, and the extensions provide more time to reach a settlement and avoid a strike.

BART strikes are awful. As someone who doesn't drive and commutes to the city from the East Bay, I appreciate this as much as anyone. But changing the law to outlaw strikes by BART workers is not the solution.

Public officials must do more to encourage constructive and respectful relations between BART management and its unions. More cooperation, not more compulsion, is the way forward.